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If a person becomes mentally incapable of
handling their own affairs they will lack authority to delegate this
responsibility to anybody else. In order to overcome problems arising from
their mental incapacity an appointment is needed under the Mental Health
Act 1983, usually by way of an Order of the Court of Protection appointing
a Deputy. Where a person’s estate does not exceed £16,000 and there is
no property, it may be possible for a direction of the Public Trustee to
be made as to who is to administer the financial affairs with the
appointment of a Deputy.
Who can act as a Deputy?
Any
person over the age of 18 may be considered by the Court of Protection to
be appointed as a Deputy. If there is nobody willing to act as a Deputy
the Public Trustee may self-appoint.
Powers
The
Deputy’s powers are limited to dealing only with the person’s
financial affairs and are clearly set out in what is known as the
"First General Order" which appoints him/her to act as a Deputy.
This Order will usually deal with one or more of the following:-
- To receive in all parts of the person’s
money held in Bank or Building Society accounts.
- To pay any doctors or Court fees, Nursing Home
or other charges, debts, out of pocket expenses and solicitors fees.
- To dispose of or sell a person’s furniture
and household effects.
- To sell the person’s property/land or to end
a Tenancy Agreement.
- To take out a Grant to administer a deceased’s
person’s estate.
- To maintain assurance policies.
- To provide accounts of how the person’s
money under their control had been dealt with.
- To carry out or execute any other acts which
will be necessary in the best interests of the person concerned.
- To provide for documents such as the person’s
Will, deeds and any Stock Share Certificates to be kept safely.
Duties
A Deputy has the following duties:
- To act at all times in the best interests of
the person concerned.
- To safeguard the person’s assets.
- To open a Deputyship Account at a local Bank
or Building Society.
- To claim from the Benefits Agency all Social
Security benefits to which the person is entitled.
- To take out security and to pay any bond
premiums as and when required.
- To prepare accounts annually or as and when
required.
- To ensure that person’s funds are being used
to provide him or her with the best quality of life.
- To ensure that all income is collected and
bills are paid on time.
- To arrange safe keeping of all deeds,
documents of title, testamentary documents and other valuables.
- To keep any property in a reasonable state of
repair, secure and adequately insured.
- To deal with the person’s Income Tax and
other tax matters.
- To notify the Court of Protection of any
changes in the person’s financial situation.
- To inform the DVLA if the person holds or
applies for a driving licence.
- To advise the Court of Protection if there is
a likelihood of the person getting married, divorced or involved in
other legal proceedings.
- To advise the Court of Protection if the
preparation of a Will is being considered.
- To co-operate with any Lord Chancellor’s
visits.
- To obtain the Court of Protection’s
permission before dealing with any capital monies.
- To inform the Court of Protection of the
person’s recovery or their death. The Deputy’s powers will cease
at such time.
- To pay the Court of Protection’s fees out of
the person’s monies as and when requested.
- To inform the Court of Protection of any
change in the person’s address and the level of any fees payable.
- To comply with all directions and orders.
The Procedure for the appointment
The
Court of Protection provides a set of application forms which need to be
completed. These are as follows:-
Medical Certificate
This form
should be completed by the person’s doctor. It is the medical evidence
that shows the person has lost mental capacity.
Certificate of Family and Property
This form deals with the background of the person who has lost
their mental capacity. It advises the Court of Protection of their family
background, their financial position and confirmation of whether or not
they have a Will or any Power of Attorney. The above documents are then
sent to the Court of Protection with a commencement fee. This fee is fixed
by the Court of Protection and is varied from time to time. When the Court
of Protection receives an application they send a letter to the person
concerned stating the following:-
- When the application will be considered.
- The name of the proposed Deputy.
- How observations and objections can be made.
This letter has to be personally delivered to the
person who has lost mental capacity. A Certificate of Service is then
returned to the Court of Protection at least 10 days before the
application is due to be heard. When the application is submitted notices
are also served on the next of kin of the person concerned. This is to
ensure the family is kept in the picture about what is going on. The
notice tells them:-
- When the application will be considered.
- The name of the proposed Deputy.
- How observations and objections can be raised.
In exceptional circumstances the serving of
notices on the same family members can be dispensed with. Attendance at
the Court of Protection on the day of the hearing is not always required
unless a specific request is made. The Order is then made and sets out the
powers that the Deputy will have. Once an Order has been made the Deputy
has to liaise with the Court of Protection and annually produce accounts
to show how monies have been dealt with over the preceding year.
Deputy’s Declaration
This form is filled in by the Deputy (with
our help) and, if necessary, helps the Court of Protection to decide
if the applicant is a suitable person to be appointed the Deputy.
Court of Protection Costs
Our costs for dealing with the
application for the appointment of a Deputy are claimed from the assets of
the person who has lost mental capacity. The Court of Protection will
determine whether the fixed fee will be levied or alternatively if our
costs are to be assessed. Assessment will be appropriate where the work
involved is over and above what is permitted for the fixed fee. On top of
this there will be disbursements such as the commencement fee (referred to
above) and any doctor’s fee for obtaining the Medical Certificate.
Once the appointment of a Deputy has been made
the Court of Protection will take annual costs from the assets of the
person who has lost their mental capacity. These costs go towards the
administration expenses incurred by the Court of Protection. Again these
costs are fixed by the Court of Protection and vary from time to time.
There will also be an annual insurance fee payable, which is determined by
the size of the estate of the person who has lost their mental capacity.
This fee is payable from their assets.
Once you are appointed as the Deputy you may wish
to handle future matters yourself. Alternatively you may continue to
instruct Robert Campbell & Company to deal with matters on a
day-to-day basis and to prepare the Deputy’s annual accounts. Fees for
dealing with the same are again either on a fixed fee basis or taxed by
the Court of Protection.
On the death of the person who has lost their
mental capacity the Court of Protection levies a fixed fee to cover their
administration charges to wind up the matter. As at 2011 the Court of
Protection fixed fees are as follows:-
Commencement Fee
This fee is payable when submitting the first application for the
appointment of a Deputy or other initial application for a Court direction
or order. From 1st October 2007 this fee is £400.00.
Appointment Fee
When the Court appoints a Deputy for the first time a fee of £125.00
is payable to place them on the register. This is payable for
applications received on or after the 1st October 2007.
Administration Fee
This is an annual fee which is charged by the Court of Protection,
based on the work needed to supervise Deputies. This fee is calculated by
the Court of Protection and is payable annually in arrears on 31st March. There
are occasions when fees will be charged for other periods. The sliding
scale costs are: £800.00 per annum - Type I (highest) £175.00 per annum
- Type II (lower) £0.00 per annum - Type III (minimal) Supervision fees
will be calculated by the Court of Protection on a pro-rata basis if: · there has
been more than one type of supervision applied in a one-year period; or · supervision
has been in place for less than one year – for example on the death of
the client (see below) Details of pro-rata calculations will be shown on
the annual invoice that the Deputy receives.
Winding up Fee
This fee covers work connected with winding up the Court of Protection
involvement in the client’s finances on the death of a client. The fee
is calculated on a pro rata basis based on the sliding scale
administration fee which was being made by the Court of Protection.
Questions
If you
need to know anything else about applying to become a Deputy feel free to
contact us at any time. Our Contact details are:
Robert
Campbell & Company
Greenhills
Winsham
Devon
EX33 2LX
Tel: 0870
241 2139
rob@carelaw.co.uk
www.carelaw.co.uk |
